Computel, Inc. v. Emery Air Freight Corp.

• Decision Date: 18 December 1990
• Docket Number: No. 89-6303,89-6303
• Citation: 919 F.2d 678
• Parties: COMPUTEL, INC., a Florida Corp., Plaintiff-Appellee, v. EMERY AIR FREIGHT CORP., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 678

919 F.2d 678

COMPUTEL, INC., a Florida Corp., Plaintiff-Appellee, v. EMERY AIR FREIGHT CORP., Defendant-Appellant.

No. 89-6303.

United States Court of Appeals Eleventh Circuit.

Dec. 18, 1990.

Lawrence D. Smith, Geoffrey B. Marks, Walton, Lantaff, Schroeder & Carson, Miami, Fla., for defendant-appellant.

Martin L. Roth, Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY and JOHNSON, Circuit Judges, and ALLGOOD ^*, Senior District Judge.

FAY, Circuit Judge:

Computel, Inc. and Comtrad International Corp. ("Computel"), the Plaintiffs-Appellees/shippers, were granted summary final judgment on a breach of contract claim against Defendant-Appellant/carrier Emery Air Freight Corp. ("Emery") in the amount of $38,625.21. The district court held that even when considered in the light most favorable to the carrier, Plaintiffs' special instruction that Defendant collect a cashier's check from a consignee was not a modification of the shipment contract. The court therefore concluded that Emery, in accepting the consignee's corporate check, breached the contract by failing to pick up Computel's specified form of payment. The court also found that Emery had failed to designate any material facts showing Computel's ratification of the breach under applicable Florida law. Although we agree with the district court that partial summary judgment was proper as to the existence of a contract between the parties to deliver the shipment on a cashier's check basis, we think there is a jury question as to whether Emery's conduct was ratified by Computel's subsequent unconditional deposit of the consignee's corporate check. Accordingly, we AFFIRM the district court's finding of breach by Emery of a contract for C.O.D. cashier's check delivery, but VACATE and REMAND the case for trial on the issue of ratification.

BACKGROUND

The facts of this breach of contract action are relatively undisputed by the parties. As the shipper, Computel contracted with Emery in Miami, Florida, for delivery of various computer goods to American Shop at Home, Inc. ("Consignee") in New York, New York. On December 23, 1988, Jose Fraga, the operations manager for Computel, telephoned Emery's service information number, 1-800-HI-EMERY. Fraga testified by affidavit that Emery's service representative told him that the carrier would deliver Computel's shipment to the Consignee and obtain a cashier's check for payment. According to Fraga, Emery's telephone representative instructed him to write "C.O.D. cashier's check" in the "Special Instructions" box of the pre-printed Emery Air Waybill, which he did.

Emery's driver subsequently picked up and accepted Computel's shipment for delivery. "C.O.D. Cashier Check" was written in the "Special Instructions" box of the In answering Plaintiffs' complaint, Emery raised several affirmative defenses, including: a) Defendant was not a guarantor of collection; b) the parol evidence rule barred any oral written change to the printed contract; c) Defendant had no liability to collect anything more than a check or money order (an obligation which Defendant contends did not encompass collection of cashier's checks); d) Plaintiff accepted and deposited the check tendered by the consignee without protest; and e) the printed contract of the parties could not be altered. Emery also filed, in response to Plaintiffs' motion for summary judgment, an affidavit of Emery's Operation's Manager, Chuck McGinley, who stated that as a business practice of Emery, "CTS shipments do not include a provision for Emery to pick up a cashier's or certified check." McGinley also stated that "[t]he air waybill has a provision for Emery to ship CTS; however, no provision is included for C.O.D., or cashier's check delivery because Emery does not offer that service."

                waybill, and the sum of $34,669.74 was written in the "Check to Shipper" and "Declared Value" boxes.  Emery delivered the shipment to the Consignee, and collected a corporate check payable to Computel, bearing the Consignee's name and address.  Emery then delivered the check to Computel, who received, accepted, stamped and deposited the check unconditionally in its bank account.  Computel's president, Claudio Osorio, did not discover that the check in question was not a cashier's check until the check was returned to Computel stamped "Account Closed."    After receiving the dishonored check, Computel brought a multi-count action against Emery, essentially maintaining that the carrier failed to fulfill a contract to deliver computer products to a third party and obtain, in return, a valid cashier's check
                

Upon review of Plaintiffs' motion for summary final judgment on its breach of contract claim, as well as the affidavits, pleadings, and memoranda filed in opposition by Defendant, the trial court granted Plaintiffs' motion and entered a final judgment of $38,625.61 for Computel. This appeal followed.

DISCUSSION

In an appeal from an order granting summary judgment, this court's review is plenary, and we apply the same legal standards as those that controlled the district court in determining whether summary judgment is appropriate. Hoffman v. Allied Corp., 912 F.2d 1379, 1382-83 (11th Cir.1990); Thrasher v. State Farm Fire & Cas. Co., 734 F.2d 637, 638 (11th Cir.1984). We therefore examine the record in the light most favorable to the party opposing the motion, and resolve all reasonable doubts about the facts in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986); Hoffman, 1382-83; Bannum, Inc. v. City of Ft. Lauderdale, 901 F.2d 989, 996 (11th Cir.1990); Thrasher, 734 F.2d at 639. If "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact," summary judgment is proper and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986).

In ruling on Plaintiffs' motion, the district court found two issues of law presented by the pleadings: 1) Whether there existed a contract between Emery and Computel for Emery to deliver the shipment on a C.O.D. cashier's check basis; and 2) If such a contract indeed existed, whether Emery's conduct with regard to the contract was ratified by Computel's subsequent conduct in depositing the corporate check. The parties have accepted this consolidation of the issues; we consider each below.

I. The Breach of Contract Claim.

As the district court observed, the dispute as to the existence of a contract between Emery and Computel turns on whether Computel's instruction specifying a C.O.D. cashier's check payment was consistent with the terms and conditions of delivery, as expressed in Emery's service guide and pre-printed air waybill. Emery contends that the air waybill and Emery Service contract prohibit any modification of their preprinted terms by any Emery employee or customer, and that the instruction requiring Emery to obtain a cashier's check was an inconsistent, unlawful alteration of the carriage contract. We disagree.

Paragraph VIII, subsection 4 of the Emery service guide provides for Check to Shipper (C.T.S.) service:

THE FULL AMOUNT OF THE C.T.S. MUST BE PAID BY THE CONSIGNEE'S CHECK OR MONEY ORDER MADE PAYABLE TO THE SHIPPER. EMERY'S SOLE RESPONSIBILITY SHALL BE TO ACCEPT THE CONSIGNEE'S CHECK OR MONEY ORDER AND EXERCISE DUE CARE AND DILIGENCE IN MAILING IT TO THE SHIPPER. THE CHECK OR MONEY ORDER WILL BE MAILED TO THE SHIPPER WITHIN TEN (10) BUSINESS DAYS AFTER RECEIPT BY US. WE SHALL HAVE NO RESPONSIBILITY NOR LIABILITY WITH RESPECT TO PAYMENT OF THE CHECK OR MONEY ORDER. OUR CHARGE FOR THE C.T.S. SERVICE OR ANY OTHER CHARGE PAYABLE TO US MUST NOT BE INCLUDED IN THE CONSIGNEE'S CHECK OR MONEY ORDER PAYABLE TO THE SHIPPER.

It is true that according to the terms and conditions on the reverse side of the waybill, no employee or agent of the parties may modify the terms and conditions of the service contract. But we agree with the district court that "neither the Terms and Conditions in the service guide nor the air waybill indicate in any way that a cashier's check is excluded from the definition of 'Check or Money Order' as it pertains to [Emery's] Check to Shipper Service." (R1-25). ¹

Indeed, Emery's own employee represented to Computel that Emery would deliver goods on a C.O.D cashier's check basis. ² Even when viewed in the light most favorable to the carrier, none of the affidavits submitted by Emery disputes that its telephone employee made such a representation, or that the representation is in any way inconsistent with the plain language of the service guide. ³

After careful review of the record in the light most favorable to Emery, we agree that summary judgment on this issue was proper. The district court did not err in finding that there was a contract between the parties for the delivery of a shipment of computer goods on a cashier's check basis, and that Emery breached this contract in failing to pick up a cashier's check from consignee when it delivered the shipment.

II. Ratification.

The remaining question is whether Computel's subsequent behavior ratified Emery's breach: Did Computel, the principal, by accepting and unconditionally depositing the Consignee's corporate check, ratify its agent Emery's unauthorized acceptance and delivery of a form of payment other than that specified in the carriage contract? On this point, we disagree with the district court's summary judgment that no ratification occurred as a matter of Florida law. ⁴

In United Parcel Service v. World Time Corp. of America, 556 So.2d 1223 (Fla. 4th DCA 1990), the shipper World Time unconditionally accepted and deposited nonconforming certified checks that...